The 2010 ADA Standards Take Effect: What Hotels & Resorts Need to Know

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1 The 2010 ADA Standards Take Effect: What Hotels & Resorts Need to Know March 1, 2012 Presented by EpsteinBeckerGreen Attorneys: Kara Maciel Jordan B. Schwartz

2 ADA FOCUS POINTS v Customer Service: Lack of Sensitivity v Accessibility Elements: Lack of Knowledge v Renovations: Lack of Access 2

3 UNDERSTANDING TITLE III OF THE ADA Coverage o o Places of public accommodation -- Hotels, restaurants, bars, spas, fitness centers, stores, recreation centers. Prohibits public accommodations from denying services to individuals with disabilities. o Protects individuals with disabilities and individuals associated with disabled individuals. 3

4 OBLIGATIONS OF PLACES OF PUBLIC ACCOMMODATION o Must make goods and services available to individuals with disabilities on an equal basis with general public o Must make goods and services usable by people with disabilities o Requires the removal of architectural and structural barriers in existing facilities where readily achievable v Familiarity with ADA regulations and standards is necessary to ensure compliance with the law and avoid discrimination lawsuits. 4

5 ADA STANDARDSFORACCESSIBLE DESIGN Purpose Governs the construction and alteration of places of public accommodation ADA Standards Maintained by Department of Justice Have been in place since 1991 Referred to as 1991 Standards 2010 Standards created Safe Harbor 5

6 ADA STANDARDSFORACCESSIBLE DESIGN Promulgation of 2010 Standards Have been in process of being revised for 10 years Effective date is March 15, 2012 Delay in implementation was provided to allow businesses sufficient time to plan for implementing the new requirements Set minimum requirements for newly designed and constructed places of public accommodations Designed to limit architectural barriers and ensure public accommodations are readily accessible to and usable by individuals with disabilities 6

7 ADA STANDARDSFORACCESSIBLE DESIGN Examples of architectural barriers include: Parking spaces with no access aisle to allow deployment of a van s wheelchair lift; Steps at a hotel s entrance or within its serving or selling space Aisles too narrow to accommodate mobility devices Counters that are too high Restrooms that are too small to use with a mobility device 7

8 ADA STANDARDSFORACCESSIBLE DESIGN 2010 Standards includes new requirements not previously addressed in 1991 Standards including: amusement parks playgrounds golf facilities miniature golf courses recreational boating facilities exercise machines and equipment fishing piers swimming pools, wading pools spas, saunas, and steam rooms 8

9 COMPLIANCE WITH 2010 STANDARDS Full compliance is required to the extent that it is not structurally impracticable. Alterations to buildings or facilities that are designated as historic under State or local law, must comply to the maximum extent feasible. Must remove barriers to the extent readily achievable. Readily achievable means easily accomplishable without much difficulty or expense. Relative to the size and financial resources of the hotel. 9

10 SAFE HARBOR PROVISION No obligation to change any element that is presently compliant with the 1991 Standards until renovations or alterations occur Existing facilities in compliance with the 1991 Standards stand to benefit from the safe harbor provision All future renovations and alterations must be done with the 2010 Standards as a guide Safe Harbor does not apply to facilities not previously addressed in ADA (e.g., swimming pools and exercise equipment) These alterations are mandatory by March 15,

11 OBLIGATIONS UNDER THE ADA The 2010 Standards provide the following priorities for barrier removal: Providing access to your hotel from sidewalks, parking areas and public transportation Providing access to the Hotel s services (e.g., restaurants and spas) Providing access to public restrooms Removing barriers to other amenities offered to your guests, such as drinking fountains, elevators and ATM s 11

12 OBLIGATIONS UNDER THE ADA Accessible Entrances 60% of all public entrances must be accessible Alternate accessible entrance should be used if main entrance cannot be made accessible o Signs should be posted at inaccessible entrances directing individuals to accessible entrance o Accessible entrance must be open whenever other public entrances are open 12

13 OBLIGATIONS UNDER THE ADA Parking You must provide accessible parking spaces for vans if readily achievable to do so 1 of every 6 accessible spaces must be van accessible Small businesses with very limited parking (4 or fewer spaces) must have one accessible parking space An accessible parking space must have access aisle allowing a wheelchair to get in and out of the vehicle 13

14 OBLIGATIONS UNDER THE ADA Total Number of Parking Spaces Provided in Parking Facility Minimum Number of Required Accessible Parking Spaces 1 to to to to to to to to to to percent of total 1001 and over 20, plus 1 for each 100, or fraction thereof, over

15 OBLIGATIONS UNDER THE ADA Accessible Room Scoping (Table 224.2) 15

16 OBLIGATIONS UNDER THE ADA Shelves, Counters & Check-Out Aisles Located on accessible route with space to allow customers using mobility devices to access merchandise o Not required to take steps resulting in significant loss of selling space Counters Max Height is 36 Shelves may be any height Clerks expected to assist customers and retrieve merchandise from high shelves At least one check-out aisle must be usable by people with disabilities When not readily achievable to make sales or service counter accessible, folding shelf or nearby accessible counter should be provided clip board or lap board should be last resort 16

17 OBLIGATIONS UNDER THE ADA Accessible Route to Goods & Services Hotels must maintain accessible route at least 3 ft. wide o Cannot be blocked by display racks, plants, furniture, filing cabinets, newspaper dispensers, vending or ice machines Temporary interruptions for maintenance or repairs are permissible o Staff must be available to assist o Must be remedied as soon as possible Accessible toilet stalls, check in counters must not be cluttered with merchandise 17

18 OBLIGATIONS UNDER THE ADA Swimming Pools: Accessible means of entry/exit are required 2 means of entry/exit for larger pools (300 or more linear feet) One entry must be a sloped entry or pool lift at a fixed location Other entry could be transfer wall or transfer system Wading pool must provide sloped entry into deepest part of pool 18

19 OBLIGATIONS UNDER THE ADA Spas and Saunas: If more than 1 spa, 5% of total must be accessible If clusters of whirlpools, 5% of each must be accessible Spa treatment rooms 5% of rooms must be accessible Saunas & Steam Rooms Contain appropriate turning space Doors cannot swing into clear floor space Accessible bench, where provided o May provide a readily removable accessible bench 19

20 OBLIGATIONS UNDER THE ADA Exercise Rooms: At least one of each type of sitting exercise equipment must be on accessible route and have clear floor space to enable an individual with a disability to use the equipment: 30 x 48 inches of clear floor space; and Be on a 36-inch wide accessible route. For standing machines, clear floor space can be in accessible path route Ensure staff and trainers do not move equipment to impede accessible elements 20

21 KEY POLICY & PROCEDURE REVISIONS v Service Animals v Mobility Devices v Effective Communication 21

22 SERVICE ANIMALS (DOGS) v Definition -- Dogs trained to perform work for the benefit of a person with disability v Must permit use of service animals when task performed is related to disability e.g., seeing eye dog v Cannot impose surcharge or cleaning fee for use of service animals v Only two permissible inquiries can be made: Is the animal required because of a disability? What work or task has the animal been trained to perform? * No other inquiries about an individual s disability or the dog are permitted 22

23 SERVICE ANIMALS (DOGS) v Cannot require proof of certification or medical documentation as condition of entry v May require the dog to be harnessed, leashed or tethered v May only exclude service animals if: The dog is out of control and the owner cannot gain control The dog is not housebroken If dog is excluded, the individual must be allowed to enter the business without the service animal v Comfort, therapy, or emotional support animals do not meet the ADA s definition of service animal 23

24 MOBILITY DEVICES v Must permit manually powered devices (wheelchairs) intended for use by individuals with disabilities v Must also allow use of other power driven mobility devices (e.g., golf carts or Segways), unless such devices cannot be operated in accordance with legitimate safety requirements (including time restrictions) v Permissible to request a credible assurance that the device is required because of a disability v Verbal assurance is okay v Legitimate safety requirements based on actual risks may be imposed v As with Service Animals, it is not permissible to ask about a person s disability 24

25 EFFECTIVE COMMUNICATION v Required to take steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities v May offer video remote interpreting ( VRI ) services as an auxiliary aid to provide effective communication v Must comply with certain performance standards to ensure its effectiveness 25

26 EFFECTIVE COMMUNICATION v Auxiliary aids must be provided in accessible formats, in timely manner, and privately v Business is financially responsible for cost of auxiliary aid unless it can demonstrate it would result in undue burden (significant difficulty or expense) v Cannot impose surcharge to cover cost of auxiliary aid provided v If one method would impose undue burden, business must provide effective alternative if one exists v Examples of common auxiliary aids and services include text telephones; Braille menus; large-print menus; interpreters; phone amplifiers; assistive listening devices; note takers; computer aided transcription services 26

27 COMMUNICATION FEATURES Required Communication Features: q Visual Alarms q Visual notifications of door knock or bell q Visual notification of incoming phone call q Telephone volume control q Accessible outlet within 4 of telephone jack Portable Alarms allowed under 1991 ADA Standard, not allowed under the 2010 ADA Standard 27

28 RESERVATIONS FOR ACCESSIBLE ROOMS AT HOTELS As of March 15, 2012, Hotel reservation systems must: v Ensure that disabled individuals can make reservations for accessible guest rooms during the same hours and in the same manner as non-disabled individuals; v Hold back the accessible guest rooms for individuals with disabilities until all other guest rooms of that type have been reserved; v Remove reserved accessible rooms from all reservation systems; and v Guarantee that the specific accessible guest room reserved through its reservation system is held for the reserving guest. 28

29 RESERVATIONS FOR ACCESSIBLE ROOMS v Staff must be able to identify and describe accessible features of the facility offered through its reservation system: the accessible room type (e.g., deluxe executive suite, deluxe king, etc.); the number and size of beds (e.g., two queen beds); available communications features (e.g., visual alarms and notification devices); and the type of accessible bathing facility (e.g., bathtub with grab bars, transfer shower, or roll-in shower). 29

30 RESERVATIONS FOR ACCESSIBLE ROOMS v For older facilities not fully compliant with 1991 or 2010 Standards, the Hotel must disclose information about: The facility s accessible entrances; Accessible paths of travel to guest check-in and other essential services (e.g., restaurants) Information about important features of the hotel that are not in compliance (e.g., doorway width or non-accessible check-in counters) 30

31 ADA ACTION ITEMS v Modify policies and procedures to allow disabled guests an equal opportunity to enjoy your businesses services and amenities v Implement policies to serve and communicate effectively with customers with disabilities v Train Staff Members v Remove structural and architectural barriers that limit a disabled individual s access v Design, alter or construct facilities in accordance with ADA Accessibility Guidelines 31

32 RECENT WAVE OFPRIVATE AND DOJ LAWSUITS Large influx of Title III litigation Due in part to promulgation of these new regulations Due in part to HUGE incentive of attorneys fees Suits brought by relatively few drive by plaintiffs suing multiple properties Plaintiff often is not even guest or patron of facility Plaintiffs aim to settle early Failure to comply with applicable regulations may have effect of causing DOJ to join the lawsuit DOJ may require one property, or all affiliated properties, to conduct a survey of its facilities and certify that the hotel complies with the ADA 32

33 FENDING OFF DRIVE BY PLAINTIFFS Training is Essential Good business practice Never have a second chance to make a first impression Develop guidelines and procedures Conduct regular training sessions Managers set the tone Certain key points Handle reservations with respect Effective communication with vision/hearing impaired customers Assist customers with mobility impairments Ensure proper opening of doors; operation of lifts, etc. 33

34 TAKE AWAYS Remove all structural or architectural barriers that limit a disabled individual s access if readily achievable Examples: Install ramps Widen doors Change door handles 34

35 TAKE AWAYS Pay special care to areas easily seen by and utilized by the public Entrance Parking Lobby Service Counters Bar/Restaurants Public Bathrooms Most important takeaway: Train employees regularly to ensure staff is adequately aware of and comfortable with ADA issues 35

36 QUESTIONS? Kara M. Maciel Jordan B. Schwartz Kara M. Maciel, Member, Epstein BeckerGreen, Washington, DC Ms. Maciel represents employers in labor and employment lawsuits arising under federal and state law, including Title VII, ADA, FMLA, FLSA, and the Department of Labor's EEO/AA regulations. Ms. Maciel concentrates on issues related to the hospitality and health care industries and has represented employers including national hotel chains, hospitality management groups, restaurants, spas, trade associations, food and dairy distributors, hospitals, and health care providers. Jordan Schwartz, Associate, EpsteinBeckerGreen, Washington, DC Mr. Schwartz is an Associate of the Firm in the Labor and Employment practice. He represents clients in a wide range of employment law matters, including statutory discrimination claims, labor arbitration and restrictive covenants and trade secret disputes. He has successfully defended employers in litigation before state and federal courts and in arbitration matters relating to the ADEA, FLSA, Title VII, the Sarbanes-Oxley Act and state anti-discrimination laws. 36

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